Protest Prosecution Targets Phone Data

In documents filed last week, the US attorney's office noted that "additional efforts are being made to obtain data" from the cell phone of journalist Aaron Cantú, who is being charged with the crimes allegedly committed by people he was covering on Inauguration Day.

"A search of this defendant's cell phone was attempted, but as this time, no data has been obtained. The government has advised defense counsel that additional efforts are being made to obtain data from this phone and the government will promptly disclose to counsel any and all data obtained if these efforts are successful," the legal disclosure read.

Like nearly 200 other defendants, Cantú is being charged with eight felonies, including rioting, conspiracy to riot and inciting riot, plus numerous charges of property damage. He is facing up to 80 years in prison for these crimes. The evidence against him so far consists of the fact that he was wearing black clothing and appeared to have abandoned a backpack.

Cantú was not indicted until May 30, long after most of his co-defendants. Whereas, in most districts, the charges he and the other protesters are facing would be state charges, in the District of Columbia they are carried out by the US attorney’s office, which answers directly to the Trump administration’s Department of Justice. Most of the indictment is identical to those charging other defendants. “Individuals participating in the Black Bloc broke the windows of a limousine parked on the north side of K Street NW,” the indictment reads, “as Aaron Cantú and others moved west on K Street NW.”

In Cantú's case, he is effectively being charged for moving along with a group that was undoubtedly breaking news, whether or not they were breaking laws.

In a Baffler piece on police use of social media, Cantú wrote: "Police ambitions on social media are totalitarian, in the sense that departments are looking to establish further control over the production of knowledge in order to secure more power."

But here, prosecutorial ambitions are also looking pretty totalitarian as they seek to control his social media and other data. The fact that they seem to be seeking additional data from his phone alone (although they have obtained plenty of data already from others) makes it seem like an attack on the press.

Email messages, texts, social media posts, contacts, search histories, a record of all calls, logins, chats, images, videos, downloads and more have been seized from other, unencrypted phones. This case will likely be instrumental in deciding to what extent the government can take data from our phones in order to gain information and quell dissent. It is particularly dangerous in the case of a reporter who may be in contact with confidential sources.

The notice that the government continued to seek data from Cantú's phone came only days after the press won a major victory when Judge Lynn Leibovitz ruled that much of the police body-cam footage that day was not protected and could be shared. While prosecutors argued that officers could be endangered by releasing the footage, it became clear that the Metropolitan Police Department had provided a list of arrestees to the far-right site Got News.

"We're all standing up for Aaron, and this affects our industry and our identity as journalists," Julie Ann Grimm, Cantú's editor at the Santa Fe Reporter, told me recently. "But the larger sort of corralling, the kettling, the mass-arresting, is also troubling."

But the "all" in Grimm's assessment is still startlingly limited. While the mainstream corporate media continues to hyperventilate over every presidential Tweet attacking major television networks, they have remained largely silent about Cantú's plight.